JUDGMENT
Jasbir S. Dhaliwal, Member (J)
1. From the pleadings of the parties, the facts which surface for our consideration are that applicant, Kaushalya Thakur had filed an application,
Annexure R-1, mentioning that she is willing to do the typing work on monthly contract basis in the office of respondents on fixed salary of Rs. 900/- and thereafter she was given an offer of appointment through letter dated 8.12.1994, R-2, by awarding the contract on payment of Rs. 900/- per month on the terms and conditions, as given in this letter. She accepted this offer under her own hand writing and signatures on 9.12.1994 for working with effect from 12.12.1994. She claims that respondents took work from her of typing from 9.12.1994 upto 30th November, 1997, i.e. for almost 3 years, when the same came to be terminated.
2. She has filed the present O.A. pleading that she had completed more than 240 days’ service in each calendar year and had become entitled for grant of temporary status and subsequently for regularisation as provided under scheme enforced by respondents and the rules and regulations. She has been making oral requests for this purposes. She claims that respondents have employed new hands and retained some juniors, names of some are given in para 4(v) of the O.A. Thereafter, she made a representation, Annexure A-10, for reengaging her on the job which was never replied to. She pleads that termination is arbitrary, malafide illegal and violative of provisions of Articles 14 and 16 of the Constitution of India and the Labour Laws. She pleads that she was made to sign and accept the contract and its conditions which are unilateral. Such a contract is unconscionable and against the public policy and thus the conditions in her letter of appointment, are not binding on her nor are sustainable under the law. She was a weaker party amongst the two contracting parties. Appointment on contract basis instead of appointing on adhoc and regular basis is-illegal and is carried on with an attempt to defeat her rights under the law. They have adopted the policy of hire and fire which is deprecated by the Hon’ble Supreme Court in a number of judgments. It amounts to exploiting the service unemployed youth. Respondents were in a dominant position and by compelling applicant have made her to accept the terms and conditions. Claiming that the order of termination is void-ab-initio, she has prayed for quashing the order of termination with a direction to respondents to re-engage her w.e.f. 30.11.1997 with full back wages alongwith interest @ 18% per annum with all the consequential benefits. She has prayed for a direction to grant temporary status and thereafter regularisation under the scheme, rules and regulations.
3. Respondents have filed written reply pleading therein that there is no violation of principles of natural justice, she had been appointed on contractual basis for a fixed period of time and as such contractual appointment was covered under the provisions of Section 2(oo)(bb) of the Industrial Disputes Act, 1947. Appointment was made on contract basis to meet exigency of work. She had herself submitted the application with the terms and conditions mentioned by her, that working on contract basis on payment of Rs. 900/- under the completed contract will confer no right on her to claim regularisation or claim temporary job in the office. Her term under the contract was extended upto a fixed date as given in Annexure R-4, (At this stage, ld. counsel for applicant has intervened to say that respondents had been fixing her term by issuing letters at short intervals almost every month like terms given in Annexure R-4). At present there is no work of typing available in the respondent department because a regular typist, namely Shri Baljeet Singh, has been appointed on regular basis. On expiry of her period under the contract, no further extension was given beyond 30th November, 1997. Applicant could not file rejoinder to the written reply despite opportunities given and pleadings were deemed to be complete vide orders dated 29.3.2000. We have heard learned counsel for the parties.
4. First of all, learned counsel for the applicant has argued that applicant had developed
certain rights under the Industrial Disputes Act, 1947, after having rendered service for more than 240 days in each calendar year. Learned counsel for respondents, however, has drawn our attention to pleadings by respondents wherein it has been mentioned that she has worked under them but her term of working was fixed under the contract and on the expiry of such term, they were within their powers to terminate the same and this cannot be called retrenchment as understood in the Industrial Disputes Act, and would not attract provisions of Section 25-F. Considering that a claim and counter claim made by both parties are under the provisions of Section 25-F and Section 2(oo)(bb) of the said Act, in our opinion, an attempt has been made to invite this Tribunal to consider their rights under the said Act. Starting with the case of Hari Ram v. Union of India, followed by S.P.Gupta and many other judgments given by the Hon’ble Supreme Court, by now it stands well settled that this Tribunal has no jurisdiction to entertain or adjudicate upon facts and questions raised under the I.D. Act. Learned counsel for the applicant stated that if the provisions of the Act are not within the purview of our jurisdiction, the case of the applicant, atleast, be considered under the principles of Section 25-F. The contention cannot be accepted under the law, for the simple reason that if there is a competent Court to consider such question and adjudicate upon and this Tribunal has been particularly debarred from even considering facts or questions falling within the domain of such Labour/Industrial Courts/tribunal and when an efficacious remedy is available to the applicant for claiming such right before such competent Court, we would refuse to be involved on determining such questions. Applicant, if so chooses, may claim these rights under such Act before the competent forum. It will be that Court which will be competent to decide whether it amounts to retrenchment under the provisions mentioned by the respondents or whether after the expiry of 240 days’ working with respondents, she has developed some rights against orders of termination which may have been passed without following the provisions of Section 25-F.
5. Learned counsel for the applicant has claimed that the contract entered into by the applicant was under compulsion as applicant was looking for means of livelihood and was infact in a weaker position as compared to the employer who was in dominant position and can dictate any terms. It is mentioned that in these conditions, the contract, Annexure R-2 should be declared to be illegal and against the public policy. Recognising this line of thinking, the legislature of this country has enacted an Act, prohibiting employment by contractors under the Contract Labour (Regulation and Abolition) Act,1970. This act, however, provides for certain protection against employment of workers by the contractors for certain institutions and also requires adherence to certain provisions like notification to be issued under Section 10 of that Act with further protection to both sides. We are dealing with a case where department had entered into contract with the applicant on her own application with an offer of appointment. Such a contract would not be hit by provisions of that Act, as it does not fall under that at all. A Department is expected to give employment to persons strictly in accordance with the recruitment rules whenever sanctioned posts become vacant. It is only in the exigency of some extra work becoming available, the work load increasing for temporary periods, that sometimes resort to engaging casual labour or persons being engaged on daily wage basis is done. We have not been shown any rule or law which specifically prohibits engaging persons on such basis where the parties accepted the terms and conditions for a temporary period or for a fixed number of days or in months. We cannot accept in the present case that it was a contract entered into by the applicant in which willing of the respondents was imposed on her. She
accepted the terms and conditions under the contract and kept on working for a period of approximately 3 years without ever raising any objection or approaching a competent Court of law against terms and conditions. It is only after disengagement of the applicant from the work of typing that she has awoken to claim rights as pleaded today before us and in the O. A. We would hold that she is estopped from questioning the same by her own act and conduct particularly when we have not been shown any specific rules or law prohibiting such engagement on fixed salary. It is true in some cases where regular vacancies were available and people like teachers were being engaged year after year in violation of the recruitment rules, that courts have taking note of the facts that vacancies were available, work was available but only to exploit human resource, employer was taking work from educated people by imposing such conditions. Those persons had come to the Courts of law and their rights were protected. The same cannot be accepted for engagement of a typist for a fixed period as was done in the present case. Claim of regularisation has to be shown to be covered under some schemes or some rules. An appointment for a fixed period which may have been continued even for prolonged periods, cannot ripen into regular service or for a claim for permanent or substantive appointment. It was so held by the Hon’ble Supreme Court in the case of State of Orissa and Anr. v. Dr. Pyari Mohan Mishra, (1995) 29 ATC 533. In the case of Director, Institute of Management Development v. Pushpa Srivastava, AIR 1992 S.C. 2070=1993( 1) SLJ 124 (SC), taking note of the earlier judgment of the Apex Court in Jacob M. Puthuparambil and Ors. v. Kerala Water Authority and Ors., the Hon’ble Supreme Court held that adhoc appointments on contractual basis for a period for six months continuing for more than one year, shall not develop any right for that person into right to remain into that post as the right comes to an end on the expiry of six months. No right for claiming regularisation of service can be entertained by the Court if no rules provide for it. Even though we are not required to express any opinion on the claim of the applicant on the basis of retrenchment as being violative of Section 25F of the I.D. Act, in the case of Santosh Kumar Singh v. State of U.P., 1996(1) SLR 602, it has been held, if the appointment initially is not to a regular post or according to the rules, such appointment cannot be regularised. The Hon’ble Supreme Court distinguished the case of Ram Samp v. State of Haryana on the facts of that case. State of Himachal Pradesh v. Ashwani Kumar, 1996(1) SLR 647(SC), where the claim of employees engaged on purely daily wage basis was before the Court and they were claiming certain rights under the Central Scheme, the Court held that no vested right was created in those employees for regularisation. Similarly in the case of Union of India v. Dinesk Kumar Saxena, 1995(2) SLR 383=1995(2) SLJ 104 (SC), wherein appointment in the Census Department were given by the department for a limited periods, the termination on the expiry of the period was upheld holding that it was not possible to direct framing of any scheme for regularisation of those employees if the work is not available. The Court held “We also do not see how these employees, who have been engaged on contractual basis for a limited and fixed duration and on fixed pay, can be directed to be absorbed in any other department of the Govt.”. In our opinion, the principles of this judgment would extend to the present case where a definite plea has been taken that a regular candidate duly selected has been appointed as a typist and now work of typing assigned to the applicant is not available. In the case of R.K. Trivedi and Ors. v. UOI and Ors., 1998(9) SCC 58 and State of West Bengal and Ors. v. Kanjit Kumar Pant, 1998 LIC 1796, it has been held that claim of regularisation cannot be considered as regularisation merely on theclaim of haying worked for sometime is not a mode of recruitment under the rules. A person claiming such a right from a Court of law must show existance of a legal right and corresponding legal duty on
the respondents. In the case of Union of India v. Uma Maheshwar and Ors., 1998 SCC (L&S) 122, the Hon’ble Supreme Court held that in absence of a scheme for regularisation of service, the Tribunal could not direct the re-engagement or reinstatement and regularisation of the persons who have been working on daily wage basis whose services have been dispensed with even if such persons have worked for a number of days in a particular year. All this law laid down by the Hon’ble Supreme Court negates the claim made by the applicant in the present case.
6. Learned counsel for the applicant has placed reliance on the judgment of the Hon’ble Supreme Court in the case of State of Haryana v. Piara Singh, 1992(3) SCT 201, to argue that if a person has worked for a number of years, presumption should be raised that work is available and as given in para 25 of this judgment, after such continuation in service, authorities must consider the case for regularisation provided he is eligible and qualified according to the rules and his service record is satisfactory. As discussed in the above mentioned judgments, the service law in administrative jurisprudence, keeps on developing from day to day and year to year. Even in this judgment, the Hon’ble Supreme Court did not give a blanket direction for regularisation of service of person merely on account of fact that they had worked for 2 or 3 years. In this para, the Hon’ble Supreme Court held that the appropriate course would be that each Government Department should frame a scheme for regularisation of such employees and if a scheme is already framed, the same may be made consistent with the directions given in that judgment, so as to reduce avoidable litigation. In para 17 of this judgment and other paras, Hon’ble Supreme Court while considering directions given by the Hon’ble High Court of Punjab and Haryana for regularisation of the adhoc and temporary employees, who had put in service of more than one year, had held that it finds it difficult to sustain such a direction. A direction has to be with due reference to exigencies of a vacancy, eligibility of the persons, as to whether he has been sponsored by an employment exchange or he has been appointed in pursuance of notification calling for such applications, so that it does not amount to back door entry etc. etc. They have stressed in this judgment also that regularisation has to be e.’ther in reference to rules or under a scheme prepared by the department concerned. In the present case we had posed a question to the applicant as to whether a scheme for regularisation or for that matter even for grant of temporary status is there and she is covered under any rule or scheme. It has been mentioned that Government of India enforced a scheme for grant of temporary status through notification issued in September, 1993, effective w.e.f. 1.9.1993 which provides for grant of temporary status to those persons who had completed one year of service as provided in Clause 4 of this scheme. This Bench had occasion to examine such contention in number of cases. Historical background for enforcement of such scheme by various department was also considered wherein Hon’ble Supreme Court had expressed its anguish in more than 5 judgments stating that various departments of the Government of India had been taking work from persons for more than decades without there being any security of tenure or other things. It was held that the concerned department should frame a scheme for grant of certain benefits and thereafter for regularisation of the persons who have been working for so many years. One after the other department of the Government of India took a decision to put a ban on further employment of casual labour and enforce some scheme for grant of temporary status and thereafter for regularisation against vacancies, if available with them. It was in this spirit that the scheme mentioned by the applicant was enforced. It was made applicable to workers who were in service on the date of enforcement of the scheme and had rendered atieast one year’s service prior to date of notification. We may agree with the learned counsel for the applicant that after a period of
seven years, the Government should make amendment to the scheme and either frame a new scheme or by amendment should cover labour employed by the respondents after the time of enforcement of the Scheme of 1993. He has referred to para 11 of said scheme where such stipulation was made. Courts have expressed such a desire that labour should not be employed without providing for certain safeguards and security of tenure for them. Para 11 mentions about the power vested in the DOPT for making amendments or for relaxing any of the provisions in the scheme, they may consider nacessary from time to time. We would hope that Government of India takes notice of this aspect. However, till this is done, we cannot accept the claim of the applicant that her case is covered under this scheme as she was not in service of the respondents when it was enforced and came to be employed by respondents only in the year 1994.
7. The plea of the applicant for direction to respondents to re-engage her is found not tenable under any law on which this Tribunal could adjudicate. Considering the terms of the contract under which she was employed, we cannot fail to ignore the mandate of the law as enunciated by the Hon’ble Supreme Court in the case of Allahabad Bank v. Prem Singh, 1996(10) SCC 597. The Hon’ble Supreme Court considered appointment on temporary basis under some letters of appointment issued from time to time for a specific period therein. It was held that the service under such letters is terminable automatically on the expiry of the period mentioned in such letters. No protection under the Industrial Disputes Act, can be extended and employer was not under obligation to continue his employment beyond the period given in the appointment letter. The same view was expressed by the Hon’ble Supreme Court in the case of Himanshu Kumar Vidyarthi and Ors. v. State of Bihar and Ors., 1997 (2) SLR 570, where some persons had been appointed as Assistants, Drivers and peons and were terminated. It was claimed that it amounted to retrenchment as known under Industrial Disputes Act and was in violation of Section 25-F of the Act. It was held that every department of the Government cannot be treated as an industry when appointments are regulated by its own statutory rules. The concept of the Industry to that extent has been excluded. Daily wage employees have no right to the post and thus, their disengagement is not arbitrary. Considered from all these angles and under the law laid down by the Hon’ble Supreme Court, we find no merit in this O.A. and it is accordingly dismissed. No costs.